11. Professional regulation and discipline
Learning objectives
• understanding the legal significance of registration of medical practitioners
• identifying the framework for national registration of all health practitioners in Australia operative on 1 July 2010
• identifying the requirements for registration
• identifying the legislation relevant to the regulation of medical practitioners
• identifying conduct that would provide the grounds for disciplinary action
• understanding the disciplinary process and possible outcomes of disciplinary hearings.
Introduction
Both regulated and unregulated workers and professionals undertake the delivery of healthcare services within Australia. Unregulated health workers and professionals are those not registrable or registered with a professional regulatory authority. That is, they are not required to have a practising licence, conferred by a regulatory authority, in order to work within the healthcare system. Examples of unregulated health workers or professionals include personal care attendants, dieticians and social workers. Regulated health professionals, such as nurses, pharmacists and medical practitioners must, however, possess a licence or practising certificate conferred by a professional regulatory authority in order to work in their chosen professions. The status of registration thereby restricts those who may practice in an identified profession to only those who hold a practising licence or certificate. Registration also confers on those professionals the legal authority to use an identified title (such as doctor, medical practitioner, or pharmacist) and undertake certain tasks; for example, prescribing narcotics or carrying out a specific procedure such as surgery. The objectives of registration and regulation of medical practitioners in Australia is to protect the public and maintain professional standards of practice. These objectives are met through the registration and regulation processes which require that each medical practitioner possesses the requisite educational qualifications, is fit to practice in their chosen profession and maintain a standard of conduct which is consistent with that expected by their peers and the public.
At the time of writing, the registration and regulation of medical practitioners is governed by the relevant state and territory Acts which establish medical boards in each of the individual jurisdictions. There are currently in excess of eighty health practitioner registration boards across Australia. 1 By 1 July 2010, however, a national registration and accreditation scheme will be in place which aims to standardise the regulation and disciplinary procedures across all the regulated health professionals. This chapter will provide an overview of the structures and broad principles relevant to the registration and regulation of those health professionals, including medical practitioners, who will be included under the national scheme. The chapter will also outline the professional disciplinary issues and procedures, and the codes of ethics and conduct, relevant to the regulation of medical practitioners.
Background to National Registration
In 2005 the Commonwealth government requested that the Productivity Commission conduct a study into:
issues impacting on the health workforce including the supply of, and demand for, health workforce professionals and propose solutions to ensure the continued delivery of quality healthcare over the next 10 years. 2
In 2006 the Council of Australian Governments (COAG) supported the recommendations as contained in the Productivity Commission Research Report titled Australia’s Health Workforce, and agreed to establish both a single national registration board and a single national accreditation board for the registration, eduction and training of health professionals. In 2008 COAG, under an intergovernmental agreement, agreed to establish a single national scheme ‘to create nationally consistent, rigorous registration and accreditation arrangements and improve public protection’. 3
[T]o establish a single national scheme, with a single national agency encompassing both registration and accreditation functions. The national registration and accreditation scheme will consist of a Ministerial Council, an independent Australian Health Workforce Advisory Council, a national agency with an agency management committee, national profession specific boards, committees of the boards, a national office to support the operations of the scheme and at least one local presence in each State and Territory. 4
The objectives of the scheme were to: 5
• provide for the protection of the public by ensuring that only practitioners who were suitably trained and qualified to practise in a competent and ethical manner are registered
• facilitate workforce mobility across Australia and reduce red tape for practitioners
• facilitate the provision of high quality education and training and rigorous and responsive assessment of overseas trained practitioners
• have regard to the public interest in promoting access to health services
• have regard to the need to enable the continuous development of a flexible, responsive and sustainable Australian workforce and enable innovation in education and service delivery.
Queensland was the state chosen to initially enact the substantive legislation giving effect to the national scheme. The national legislation was enacted in Queensland in two stages. The first stage, covering the provisions of the COAG Agreement, was introduced into the Queensland Parliament in October 20086 and the second stage in August 2009. The second stage included details for the arrangements required for registration, accreditation, complaints and enforcement, privacy and information sharing. 7 Extensive consultation, involving the professions and the public, was conducted as part of the process. 8 The other states and territories have followed the Queensland lead using their ‘best endeavours’ to repeal their existing regulatory legislation in relation to the health professionals included under the new scheme.
The legislative framework was introduced in such a way, and at a pace, so as to facilitate the development of entities and administrative arrangements necessary to implement the new national scheme. The following is an overview of the stages and legislation establishing the National Law: 9
• First stage: Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008, which commenced on 25 November 2008 and remains in force until 1 July 2010. 10 This Act gives effect to the administrative requirements to establish a National Registration and Accreditation Scheme.
• Second stage: Health Practitioner Regulation National Law Act 2009, with the Health Practitioner Regulation National Law (the National Law) contained in the Schedule effective on 1 July 2010.
• Third stage: Each state and territory introduced a Bill to adopt the National Law. As Queensland passed the Act in 2009 there is no requirement in that state for further legislation. 11
Table 11.1 provides an overview of the implementation of the national scheme across the jurisdictions.
| Jurisdiction | Progress |
|---|---|
| ACT | The Health Practitioner Regulation National Law (ACT) Bill. Adoption Law passed 16.3.2010 |
| Commonwealth | Health Practitioner Regulation (Consequential Amendments) Bill 2010 introduced into the House of Representatives 24.2.2010 awaiting debate |
| New South Wales | Health Practitioner Regulation Act 2009. Adoption Law passes 11.11.2009 |
| Northern Territory | Health Practitioner Regulation (National Uniform Legislation) Bill 2010. Adoption Law passed 17.3.2010 |
| Queensland | Health Practitioner Regulation National Law Bill 2009. Adoption Law passed 3.11.2009 |
| South Australia | Health Practitioner Regulation National Law (South Australia) Bill 2010. Consultation on draft Bill commenced |
| Tasmania | Health Practitioner Regulation National Law (Tasmania) Bill 2009. Passed by House of Assembly 17.11.2009 and awaiting debate in Tasmanian Legislative Council |
| Victoria | Health Practitioner National Law (Victoria) Act 2009. Statute Act Amendment (National Health Practitioner Regulation) Bill introduced into the Victorian Legislative Assembly 24.2.2010 |
From 1 July 2010 the national registration and accreditation scheme covers the ten health professions to be initially included in the national scheme: chiropractors; dental (including dentists, dental hygienists, dental prosthetists and dental therapists); medical practitioners; nurses and midwives; optometrists; osteopaths; pharmacists; physiotherapists; podiatrists; and psychologists. From 1 July 2012 the scheme will be expanded to include Aboriginal and Torres Strait Islander health practitioners, Chinese medicine practitioners, and medical radiation practitioners. 12
Structure and Function of The National Scheme
In November 2008 the Health Practitioner Regulation (Administrative Arrangements) National Law Act (Qld) was enacted to establish the structure of the national registration and accreditation scheme and empower the bodies identified under the Act to develop and implement the scheme. The Act established the Ministerial Council, Australian Health Workforce Advisory Council, National Agency (the affairs of which are to be conducted by the Agency Management Committee) and the National Boards for each of the health professions covered by the scheme. 13 In relation to medical practitioners, the Medical Board of Australia was established under the Act. There will also be a local presence for each of the professional disciplines in each state and territory. Section 3 of the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (‘the Act’) states the object of the legislation:
(2) A person or body that has functions under this Law is to exercise those functions having regard to the objectives of the national registration and accreditation scheme, as set out in the COAG Agreement. 14
The Ministerial Council, comprising the Ministers of government in the participating jurisdictions of the Commonwealth with portfolios responsibile for health, must take into account concerns and advice from the Australian Health Workforce Advisory Council (Advisory Council). In anticipation of the commencement of the national registration and accreditation scheme, the Ministerial Council may also approve ‘health profession standards’15 for any health profession provided it has been approved by the National Board established for that particular discipline of health professionals. In addition, the Ministerial Council is empowered to request that a particular National Board review a health profession standard, and approve or revoke amendments to an existing health profession standard. That is, the Ministerial Council may request the Medical Board of Australia to review, approve, revoke or amend professional standards for medical practitioners in Australia.
The Advisory Council is established under Part 3 of the Act as an independent body which provides advice to the Ministerial Council on: 16
• any matter relating to the scheme referred to it by the Ministerial Council, including those matters upon which the Ministerial Council is not able to reach a decision
• any other matters relating to the scheme that the Advisory Council considers appropriate.
Part 4 of the Act provides for the Australian Health Practitioners Regulation Agency and, under s 18, the National Agency. The principle functions of the National Agency are set out in section 20(1) as follows:
(a) to establish general requirements for the development of health profession standards for the purpose of ensuring the scheme operates in accordance with good regulatory practice;
(b) in consultation with National Boards, to develop procedures for the purpose of ensuring the efficient and effective operation of the National Boards;
(c) to provide administrative assistance to the National Boards and their committees;
(d) to negotiate in good faith with, and attempt to come to agreement with, each National Board on the terms of a health profession agreement for the health professional for which the Board is established;
(e) to provide advice to the Ministerial Council in connection with the development and implementation of the national registration and accreditation scheme;
(g) in anticipation of the commencement of the national registration and accreditation scheme, to do anything else that is necessary or convenient for the purpose of preparing and enabling the National Agency to exercise any other functions the COAG Agreement provides will be conferred on the National Agency under the scheme.
The National Agency is required to establish a national office and at least one office in each participating state and territory.
The Agency Management Committee is established to conduct the affairs of the National Agency and is subject to the direction of the Ministerial Council. It is the role of the Agency Management Committee to determine the policies of the National Agency and ensure the National Agency performs its functions ‘in a proper, effective and efficient way’. 17
The National Agency is required to establish National Boards18 for each discipline of health professions covered by the scheme. Under the Health Practitioner Regulation National Law Act (2009) the functions of the National Boards are to include:
• registering suitably qualified and competent persons and, if necessary, imposing conditions on their registration;
• determining the requirements for registration or endorsement, including arrangements for supervised practice;
• developing or approving standards, codes and guidelines for health professionals;
• approving accredited programs of study as providing qualifications for registration;
• overseeing the assessment of knowledge and clinical skills of overseas trained applicants for registration;
• negotiating in good faith with the National Agency on the terms of a health profession agreement;
• overseeing the receipt, assessment and investigation of notifications about persons who were or are registrants or students in the health profession;
• establishing a panel to conduct hearings about health, performance and professional standards;
• referring matters about health practitioners who are or were registered to responsible tribunals;
• making recommendations, giving advice, assistance or information to the Ministerial Council;
• in conjunction with the National Agency keeping up-to-date publicly accessible national registers;
• providing financial or other support for health programs for registered health practitioners and students;
• doing anything else that is necessary or convenient for the effective or efficient operation of the national registration and accreditation scheme;
• any other function given to the board by or under this law.
On 8 May 2009 the Australian Workforce Ministerial Council issued a communiqué on the design of the national registration and accreditation scheme. In this communiqué the Australian Workforce Ministerial Council agreed that the function of accreditation was to be independent of government with accreditation standards developed by independent accrediting bodies or accreditation committees of the professional boards. The final decision as to whether ‘the accredited standards, courses and training programs are approved for the purposes of registration is the responsibility of the National Board’. 19 It is noted, however, that the Ministerial Council has retained the power to act where changes to accreditation standards, such as clinical placement hours or workplace or work practices, would ‘have a significantly negative effect’. 20 The national accreditation standards that currently exist are to continue until replaced by new standards. Bodies such as the Australian Medical Council and the Australian Pharmacy Council will continue in their current roles. In addition, the communiqué outlined the following:
• there will be both general and specialist registers where the Ministers agree there is a requirement for specialist registration
• there will be a requirement that registrants participate in continuing professional development programs approved by the national professional boards as a pre-requisite to registration renewal
• the introduction of mandatory reporting of registrants who place ‘the public at risk of harm’21
• mandatory criminal history and identity checks of all health professionals registering for the first time, with all other registrants making an annual declaration upon application for renewal of registration; the National Boards will have the power to conduct ad hoc criminal history and identity checks of registrants
• registration of students enrolled in the health disciplines through a deeming process based on student lists supplied to the boards by educational providers
• the prescribing of cosmetic lenses to be restricted to optometrists and medical practitioners.
National Medical Board (Medical Board Of Australia) 22
As stated above, the Medical Board of Australia was established under the Health Practitioner Regulation (Administrative Arrangement) Act 2008 and, from 1 July 2010 the Medical Board will operate under the Health Practitioner Regulation National Law (the National Law) in jurisdictions where it had been adopted. The first meeting of the Medical Board of Australia took place on 20 September 2009. To the time of writing, the board has:
focused on its priorities in preparing for the introduction of the national registration and accreditation scheme and on preparatory work to enable it to fulfil its statutory functions from 1 July 2010. 23
This has included consideration of the structure and delegation to state and territory boards, establishing a specialist register, development, adoption and re-issuing of codes and guidelines, registration standards, medical courses and specialist qualifications, mandatory reporting, advertising guidelines, scheduled medicine endorsements and decisions about the publication of conditions, undertakings and reprimands in the register. 24
Transition from state- and territory-based to national-based registration
The Medical Board of Australia has determined that while it will, in addition to its other functions, assume the responsibility for developing and approving registration standards, codes and guidelines and approving accreditation standards, the state and territory boards, such as the Queensland Board of the Medical Board of Australia (and its equivalent in the other jurisdictions), will be delegated the responsibility of dealing with matters related to individual practitioners. This will include making the day-to-day decisions about applications for registration and investigations of notifications about health practitioners. The state- and territory-based boards will be assisted by a number of committees which are likely to include:
Registration
Registration of a medical practitioner is a prerequisite to practising medicine. From 1 July 2010 medical practitioners in all states and territories will need to be registered with the Medical Board of Australia under the Health Practitioner Regulation National Law Act 2009. The types of registration for medical practitioners by the board are: general registration, specialist registration, limited registration (includes the sub-types of post graduate training or supervised practice, area of need, teaching and research and in the public interest), provisional registration and non-practising registration. Specialists will be required to have both general and specialist registration. 26 Those medical practitioners with existing registration by state and territory medical registration boards will go through transition to registration under the National Law. Unlike the previous system, the requirements for registration will be the same regardless of which state or territory the medical practitioner intends to practise. There is therefore no need for the mutual recognition legislation in the individual Australian jurisdictions. A medical practitioner registered in one state or territory will have registration across all Australian states and territories. The National Law does not, however, affect the operation of the Trans-Tasman mutual recognition legislation in relation to registration to practise in New Zealand. 27
Under the National Law an individual is eligible for general registration in a health profession if they: 28
• are qualified for general registration in the health profession, 29 and
• have successfully completed the period of supervised practice in the health profession that is required by the approved registration standard for the health profession, or any examination or assessment required by an approved registration standard to assess the individual’s ability to competently and safely practise the profession, and
• are a suitable person to hold general registration in the health profession, and
• are not disqualified from applying for registration or being registered as a health professional, and
As previously stated, the National Boards must develop registration standards for their particular discipline. 30 The Medical Board of Australia has therefore developed registration standards that have been approved by the Ministerial Council. The approved registration standards for registration as a medical practitioner are as follows: 31
• criminal history registration standard
• English language skills standard
• professional indemnity insurance standard
• continuing professional development standard
• recency of practice standard
• list of specialities, fields of specialty practice and related specialist title
• limited registration for area of need registration standard
• limited registration for post graduate training or supervised practice registration standard.
Criminal history registration
This standard applies to all regulated health practitioners whether they are applicants for registration or registered practitioners applying for renewal of their practising licence. To decide whether a health practitioner’s criminal history is relevant the board will consider ten prescribed factors set out in the standards:
1 the nature and gravity of the offence, or the alleged offence, and its relevance to health practice;
2 the period of time since the health practitioner committed, or allegedly committed, the offence;
3 whether a finding of guilt or a conviction was recorded … or charge for the offence is still pending;
4 the sentence imposed for the offence;
5 the age of the health practitioner, and any victim at the time the health practitioner committed, or allegedly committed, the offence;
6 whether the conduct that constituted the offence or to which the charge relates has been decriminalised;
7 the health practitioner’s behaviour since he or she committed, or allegedly committed, the offence;
8 the likelihood of future threat to a patient of the health practitioner;
9 any information given by the health practitioner;
For the purpose of the National Law, ‘criminal history’ is defined as: 32
every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of the Law …
every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for an offence … every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
English language skills
The standards require that all internationally qualified applicants for registration or applicants who qualified for registration in Australia without completing their secondary education in English must demonstrate the necessary English language skills at International English Language Testing System (IELTS) academic level 7 or the equivalent.
Professional indemnity insurance
All medical practitioners who undertake any form of medical practice are required to have professional indemnity insurance or an alternative form of indemnity cover (as an example, salaried medical officers within the public sector will be indemnified as an employee under the government insurance scheme). The initial application for registration and the annual renewal process will require a declaration that the medical practitioner is insured for all areas of their medical practice for the duration of their licence (12 months).
Continuing professional development
Medical practitioners will be required to make an annual declaration that they have met the continuing professional development (CPD) standard as set by the board. Each practitioner is required to ensure that their CPD activities are recorded and available for audit and investigation purposes. It is important to note that a failure of a health practitioner of any discipline to comply with the CPD requirements is considered as a breach of the legal requirements for registration. The CPD requirements for any individual practitioner will be dependent upon the category of their registration. For example, Members or Fellows of medical colleges, accredited by the Australian Medical Council, must meet the standards for CPD as set by their college, and medical practitioners who hold provisional registration (interns), or limited registration for post graduate training or supervised practice must participate in the supervised training and education programs associated with their position.
Recency of practice
The periods of time to meet the requirements for recency of practice are dependent on the field of practice, the level of experience of the individual practitioner and the length of time they have been absent from their field of practice. 33 As an example, for practitioners returning to practice within their previous field, provided they have at least 2 years previous experience prior to their absence if they return within 1 year there are no specific requirements before they can recommence their practice. If the absence is for between 1 and 3 years, the person is required to complete a minimum of 1 year pro rata CPD activities that are relevant to their intended scope of practice and designed to update and maintain their knowledge and clinical skill prior to recommencement. If the length of the absence is greater than 3 years, the person is required to provide a professional development plan for re-entry to practice to the board for their consideration and approval.
List of specialties, fields of specialty practice and related specialist titles
The board has developed a specialist register which includes those fields of practice that closely align to the Australian Medical Council’s specialist list. Of note is the inclusion of general practitioners with vocational registration on the specialist register.
Limited registration for area of need registration standard
This standard applies to international medical graduates (IMGs) who do not qualify for general or specialist registration.
Limited registration for post graduate training or supervised practice registration standard
This standard also applies to IMGs who are applying for limited registration for post graduate training or supervised practice.
Subject to the requirements in relation to the accreditation standards, the Medical Board of Australia may also develop and recommend standards about the physical and mental health of an applicant for registration or a registered medical practitioner or medical student, the scope of practice of a registered medical practitioner and any other issues relevant to the eligibility of an individual for registration.
Applications for registration must be in the form approved by the Medical Board of Australia, accompanied by the relevant fee, proof of identity and any other information reasonably required by the board. 34 The applicant must also provide a declaration as to their residential or practising address and their address for correspondence with the board. Students undertaking an approved program of study for the health profession may be registered as determined by the National Board for the profession. Registration under the National Law is granted for a period of not more than 12 months.
Recognition and registration as a specialist is significant for the purposes of obtaining a rebate under the Medicare Australia scheme. Before applying for recognition as a specialist35 under the Health Insurance Act 1973 (Cth) the medical practitioner must be registered to practise as a specialist in his/her specialty. Alternatively, they may have an Australasian Specialist Medical College Fellowship and status as a Fellow of an Australasian Specialist Medical College in relation to the specialty. Recognition as a specialist under the Health Insurance Act 1973 (Cth) enables Medicare benefits to be paid at the higher rate and, in addition to the higher rebate attendance items, there are other items in the Medicare Benefit Schedule which are only available to those medical practitioners with specialist recognition.
Disciplinary Issues
Where a medical practitioner practices in a manner which is considered below a standard acceptable to the profession, it is likely that disciplinary proceedings will be initiated. Broadly speaking, activities which warrant the imposition of disciplinary action for those practising as medical practitioners can be categorised as unsatisfactory professional conduct, professional misconduct; suspected mental or physical incapacity; alcohol or drug addiction; conviction for a serious offence; making a fraudulent or misleading statement to acquire registration; failing to comply with the lawful requirements of the board; committing an offence against the legislation; and cancellation of registration.
The terms ‘unsatisfactory professional conduct’ or ‘professional misconduct’, also referred to as ‘misconduct’, ‘unprofessional conduct’ or ‘unethical conduct’, have often been used as broad terms to encompass the grounds upon which medical practitioners have been disciplined for a breach of the relevant regulatory legislation in the states or territories in which they work. What constitutes unsatisfactory professional conduct of a sufficiently serious nature to justify removal of the health professional’s name from the register may vary between individuals, the experience a medical practitioner has in a particular clinical area, and the subjective circumstances surrounding the incident. Is it unsatisfactory professional conduct or misconduct if it is the result of a mistake? Is it unsatisfactory professional conduct or misconduct if the patient sustains no injury?
Section 5 of the Health Practitioner Regulation National Law Act (2009) (National Law) defines ‘professional misconduct of a registered health practitioner’ to include:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Section 5 of the Act defines ‘unprofessional conduct of a registered practitioner’ to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes:
(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b) a contravention by the practitioner of –
(i) a condition to which the practitioner’s registration was subject; or
(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and
(c) the conviction of the practitioner for an offence under the Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s wellbeing; and
(e) influencing or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
‘Unsatisfactory professional performance of a registered health practitioner’ is defined under s 5 of the Act as meaning the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
In addition to the definitions of conduct which warrant a disciplinary response, the National Law imposes on all health practitioners, employers and education providers a mandatory notification obligation. Section 141 provides that a registered health practitioner:
who, in the course of practising [their] profession, … form a reasonable belief that –
(a) another registered health practitioner … has behaved in a way that constitutes notifiable conduct; or
(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.
… must, as soon as practicable after forming the reasonable belief, notify the National Agency of the … notifiable conduct or the student’s impairment.
‘Notifiable conduct in relation to a registered health practitioner’ is defined to mean the practitioner has:
practised while intoxicated by alcohol or drugs, or engaged in sexual misconduct in connection with the practice of the practitioner’s profession, or placed the public at risk of substantial harm … because the practitioner has an impairment; or … placed the public at risk of harm because the practitioner practised the profession in a way that constitutes a significant departure from accepted professional standards. 36
‘Impairment’ is defined as: 37
… a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice the profession.
The impact of the mandatory notification provisions extend across all disciplines of health professionals regulated by the National Law. That is, if a medical practitioner in the course of practising medicine forms a reasonable belief that any other health practitioner, regardless of their discipline, has conducted themselves in a manner that constitutes notifiable conduct, or a student of a health discipline is impaired to an extent that poses a substantial risk of harm, there is an obligation to notify the National Agency. While a notification can be made about an impaired student there is no mandatory obligation imposed on students to make a notification.
Where a health practitioner in ‘good faith’ makes a notification or supplies information about the conduct of another health practitioner or student they are protected from civil, criminal and administrative liability including defamation. It is important to note that the making of a notification in ‘good faith’ by a health practitioner, employer or education provider does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct. 38 The legislation does not provide a penalty for the failure by a health practitioner to make a notification, however, such a failure may provide the basis for conduct or performance action by the board. In relation to employers, a failure to notify may result in a written report to the Health Minister and a subsequent notification to the relevant health complaints entity or licensing authority. Under the Health Practitioner Regulation National Law Act there are provisions for:
A ‘responsible tribunal’ within the respective states or territories, exercising disciplinary powers in a matter involving a medical practitioner, may:
• find there is no case to answer
• make a finding the medical practitioner behaved in a way that constituted unsatisfactory professional performance
• find the behaviour constituted unprofessional conduct
• find the practitioner has an impairment
• find the practitioner’s registration was obtained improperly … based on false or misleading information. 42
The outcome imposed by the ‘responsible tribunal’ may include a caution or reprimand of the medical practitioner, the imposition of conditions on the practitioner’s registration, the order for payment of a fine, suspension or cancellation of the medical practitioner’s registration.
Disciplinary case law
Under the National Law, the grounds for disciplinary proceedings against a medical practitioner, being ‘professional misconduct’, ‘unprofessional conduct’ and ‘unsatisfactory professional performance’, are defined within the Act. It is to be assumed that the introduction of the National Scheme in 2010 will result in a consistency in interpretation of the given meanings in each of the states and territories.
Professional misconduct, unprofessional conduct or unsatisfactory professional performance may present in many forms and it may be of assistance to consider some categories of conduct by medical practitioners that have historically resulted in disciplinary proceedings. In the case of Qidwai v Brown, 43 which involved a medical practitioner performing an appendicectomy in his private consulting room on a day surgery basis, the court found the practice to amount to professional misconduct. Priestley J proposed that the appropriate test for determining misconduct in a professional respect in relation to a medical practitioners was: 44
whether the practitioner was in such breach of the written and unwritten rules of the profession as would reasonably incur a strong reprobation from professional brethren of good reputation and competence.
Sexual misconduct
In the Medical Board of Queensland v Alroe45 the psychiatrist established and maintained a social and sexual relationship with a 52-year-old patient who had a long history of depression and psychiatric illness. The relationship between the psychiatrist and his patient commenced shortly after the termination of the professional relationship. The Queensland Health Practitioner Tribunal found that, given the history of the patient and the strong possibility that her mental illness would reoccur or she would have a relapse, the registrant had an added responsibility to maintain professional boundaries. His conduct, the tribunal concluded, could ‘only be described as predatory and exploitive’. 46 Such a relationship as existed between the registrant and his former patient was clearly contrary to the Royal Austration and New Zealand College of Psychiatrists (RANZCP) Code of Ethics. The registrant was found guilty of unsatisfactory professional conduct. His registration was cancelled for 4 years with the cancellation to remain on the Board Register for 6 years. The registrant was ordered to pay the board’s costs.
Disciplinary processes
In all Australian jurisdictions the disciplinary process is complaint driven, requiring a written complaint to initiate an investigation. The specific processes of the lodging of a complaint, investigation of the complaint and hearing of a charge are set out in the National Law and the legislation empowering the responsible tribunal in the particular states or territories. In all jurisdictions the standard of proof required for findings will be the civil standard. That is, the allegations must be made out on ‘the balance of probabilities’. However, the ‘clarity’ of the proof required to discharge the burden must reflect the seriousness of the charge: Briginshaw v Briginshaw. 47 In all jurisdictions certain complaints about health professionals are simultaneously referred to the relevant state or territory complaints units or commissions which attempt to resolve complaints about healthcare professionals through conciliation and mediation. (For an overview of the complaint mechanisms in the states and territories refer to Chapter 2, Safety and quality in health.)
Natural justice
All disciplinary tribunals are bound by the requirement of recognising the right to natural justice. They are, as a general rule, not bound by the rules of practice about evidence and may inform themselves on any matter as the committee or tribunal considers appropriate. Western Australian legislative provisions as they apply to disciplinary tribunals are, however, bound by the rules of evidence ‘though otherwise may proceed in a manner it [the Board] thinks fit subject to the rules of natural justice’. Forbes suggests that most ‘applications for review of disciplinary decisions are based upon a claim that natural justice has been denied’. 48 Natural justice was held in Byrne v Kinematograph Renters’ Society49 per Harman J as:
… the person accused should know the nature of a accusation made; secondly he should be given an opportunity to state his case; and thirdly of course that the tribunal should act in good faith. I do not think that there is really anything more.
Reception of evidence
Forbes states that the ‘common law allows these bodies (tribunals) to obtain information in any way they think fit’. 50 In the circumstances that are presented before disciplinary tribunals and committees, alleging misconduct by health professionals, it is suggested that evidential rules providing boundaries based on relevance, probative value and prejudicial effect are cast aside at the peril of the disciplinary body. As Evatt J said in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott:51
After all, (the rules of evidence) represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party.
Codes and guidelines
The Health Practitioner Regulation National Law Act 2009empowers the Medical Board of Australia (as a National Board) to develop and approve codes and guidelines for the purpose of providing guidance to the medical practitioners it registers, and information about matters relevant to its functions. 52 The Good Medical Practice: A Code of Conduct for Doctors in Australia53 was developed by a working party of the Australian Medical Council on behalf of the Medical Boards of the Australian states and territories in 2009. In preparation for the transition to the National Scheme the Medical Board of Australia has decided to reissue this code with minor editing to reflect the National Law. The board has also approved guidelines in relation to advertising and the new mandatory reporting obligations. It is the intention of the board to develop specific guidelines in relation to:
• professional boundaries;
• sexual misconduct;
• medical practitioners and medical students with blood-borne infectious diseases; and
• unconventional medical practices. 54
Codes of ethics
Codes of ethics are distinct from, but complementary to, professional codes of conduct. As described by Freckelton they are:
a means to an end … [T]hrough the process of moral deliberation thereby engendered, they may operate as the catalyst for ethical conduct both by heightening awareness of ethical proprieties and by providing guidance from experienced professionals for the resolution of ethical conundra encountered at a practical level by practitioners. 55
The medical profession is but one group working within the healthcare context that has formulated quite a detailed code of ethics to guide the practice of their members in the care and treatment of patients and clients and their relationship with the community. The code therefore has become part of the regulatory armoury by which the National Medical Board and state entities will benchmark conduct. The code is part of a set of criteria for assessing professional standards of practice, the breach of which will result in disciplinary proceedings. In the unreported decision of Childs v Walton56 the New South Wales Medical Tribunal found the charges of sexual misconduct, and breach of confidence proven against the practitioner. In the Court of Appeal Samuels JA, with whom Priestley and Meagher JJA agreed, held that ‘professional misconduct’ incorporated ‘unethical conduct’. The courts have also indicated that the breach of the code of ethics by a doctor was relevant to determining whether there had been a breach of his duty of care. In the case of Furniss v Fitchett57 the medical practitioner was found guilty in negligence after he had provided the husband of one of his patients with a summary of the wife’s mental status. The couple were, at the time, involved in proceedings for separation and divorce. The solicitor for the husband tendered the documents as part of the case. In awarding damages to Mrs Fitchett the court held:
the British Medical Association’s code of ethics is evidence of the general professional standards of which a reasonably careful, skilled and informed professional would conform. I think it was admissible for that purpose and it, therefore became necessary to decide whether the law, as distinct from the ethical code of the British Medical Association, permitted any departure from those standards. 58
The AMA Code of Ethics, editorially revised in 2006, has its origins in a history which extends back to the Hippocratic Oath. The AMA, in accepting the responsibility to set the standards for ethical behaviour expected of doctors, recognises the obligations of doctors to their patients, the profession and society. 59
SCENARIO AND ACTIVITY
You are working as an intern in a metropolitan teaching hospital and have been there for the last 6 months. You have been rostered on the night shift frequently over the last 4 months. It has come to your attention that a registrar, with whom you work during the night, has been arriving late for the shift and is frequently unable to be contacted or does not respond when paged. On a number of occasions you have become aware that the registrar has failed to appropriately examine a patient, has failed to identify significant patient signs and symptoms, has made errors in the medical records and prescribed incorrect doses of medications. Up until now you have attempted to correct these errors. You have become concerned that the registrar is increasingly forgetful, vague and periodically abusive to patients and staff. You have unsuccessfully attempted on a number of occasions to raise this issue with the registrar. At 2 a.m. on this particular shift you page the registrar to assist urgently with a multi-vehicle road trauma that has been air-lifted to the Emergency Department. The registrar does not respond and does not attend. After the patients have been assessed and moved to the respective clinical units you locate the registrar who is semi-conscious in a patient bed having consumed a large volume of alcohol. You locate the bottle of alcohol next to the registrar.
• After consulting with your clinical supervisor what action do you think should be taken?
To ensure that you have identified and understood the key points of this chapter please answer the following questions.
1 Identify the legislation under which you would seek registration as a medical practitioner in Australia.
2 Identify the qualifications you require to apply for general registration as a medical practitioner.
4 Identify the activities that a registered medical practitioner may undertake as a function of registration. For example, consider the provisions of your drugs and poisons regulations or Act. What are the legal powers of a medical practitioner in relation to possession and prescribing of narcotics? How is this authority different from that accorded to a registered nurse?
5 List the structure of the National Scheme.
6 What is included in the National Accreditation Scheme?
7 Identify the conduct that would amount to grounds for disciplinary action against a medical practitioner.
8 Identify and describe the conduct that comes under the mandatory notification provisions.
9 Locate the AMA Code of Ethics.
10 Locate the Good Medical Practice: A Code of Conduct for Doctors in Australia. How are the provisions different from or similar to the Code of Ethics?
11 Identify the possible outcomes of a disciplinary action where the charges of sexual misconduct against the medical practitioner have been proven.
Further reading
Bophy, E., ‘Does a doctor have a duty to provide information and advice about complementary and alternative medicine?’, JLM 10 (2003) 271.
Cummings, F., ‘Complementary medicine regulation in Australia’, Current Therapeutics 42 (2000) 57–61.
Eisenberg, D.; Cohen, M.; et al., ‘Credentialing Complementary and Alternative Medicine Providers’, Ann Intern Med 137 (12) (2002) 965–973.
Kerrridge, I.; Lowe, M.; McPhee, J., Ethics and Law for Health Professionals. 2nd edn (2005) The Federation Press, Sydney.
Lewith, G.; Bensoussan, A., ‘Complementary and alternative medicine with a difference’, Med J Aust 180 (2004) 585–586.
Parker, M., ‘The regulation of complementary health: Sacrificing integrity?’, Med J Aust 179 (6) (2003) 316–318.
Walmsley, S.; Abadee, A.; Zipser, B., Professional Liability in Australia. 2nd edn (2007) Lawbook Co, Sydney.
Weir, M., Complementary Medicine: Ethics and Law. (2007) Prometheus Publication, Brisbane.
Endnotes
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3. Council of Australian Governments (COAG), National Registration and Accreditation Scheme, application guide for National Boards for health professionals. (2008) COAG, Canberra.
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12 Australian Health Workforce Ministerial Council, Communiqué 8 (May 2009) p 2.
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48 Forbes, J., Disciplinary Tribunals. (1990) Law Book co, Sydney; at 56.
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50 Forbes, J., The Law of Domestic and Private Tribunals. (1982) Law Book Co, Sydney; at 143.
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55 Freckleton, I., ‘Enforcement of ethics’, In: (Editors: Coady, M.; Blooh, S.) Codes of Ethics in the Professions (1996) Melbourne University Press, Melbourne; at 130.
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